USPTO Patents Application 10597635

United States Patent and Trademark Office

UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office

Address: COMMISSIONER FOR PATENTS
P.O. Box 1450

Alexandria, Virginia 22313-1450
www.uspto.gov

APPLICATION NO.

FILING DATE

FIRST NAMED INVENTOR

ATTORNEY DOCKET NO.

CONFIRMATION NO.

10/597,635

05/08/2008

Omer Einav

34636

4255

67801 7590 03/19/2012

MARTIN D. MOYNIHAN d/b/a PRTSI, INC.
P.O. BOX 16446
ARLINGTON, VA 22215

EXAMINER

THANH, QUANG D

PAPER NUMBER

3771

MAIL DATE

DELIVERY MODE

03/19/2012 PAPER

Please find below and/or attached an Office communication concerning this application or proceeding.

The time period for reply, if any, is set in the attached communication.

PTOL-90A (Rev. 04/07)

\SIIIK*& ^lUtlwf f will f If ffCIf y

Application No.

10/597,635

Applicant(s)

EINAV, OMER

Examiner

Quang D. Thanh

Art Unit

3771

~ The MAILING DATE of this communication appears on the cover sheet with the correspondence address
Period for Reply

A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE 3 MONTH(S) OR THIRTY (30) DAYS,
WHICHEVER IS LONGER, FROM THE MAILING DATE OF THIS COMMUNICATION.

- Extensions of time may be available under the provisions of 37 GFR 1 .136(a). In no event, however, may a reply be timely filed
after SIX (6) MONTHS from the mailing date of this communication.

- If NO period for reply is specified above, the maximum statutory period will apply and will expire SIX (6) MONTHS from the mailing date of this communication.

- Failure to reply within the set or extended period for reply will, by statute, cause the application to become ABANDONED (35 U.S.C. § 133).
Any reply received by the Office later than three months after the mailing date of this communication, even if timely filed, may reduce any
earned patent term adjustment. See 37 CFR 1 .704(b).

Status

1 )□ Responsive to communication(s) filed on .

2a)D This action is FINAL. 2b)K This action is non-final.

3) D An election was made by the applicant in response to a restriction requirement set forth during the interview on

; the restriction requirement and election have been incorporated into this action.

4) D Since this application is in condition for allowance except for formal matters, prosecution as to the merits is

closed in accordance with the practice under Ex parte Quayle, 1935 CD. 1 1 , 453 O.G. 213.

Disposition of Claims

5) ^ Claim(s) 1-9, 11-68 is/are pending in the application.

5a) Of the above claim(s) 18-55 is/are withdrawn from consideration.

6) D Claim(s) is/are allowed.

7) KI Claim(s) 1-9.1 1-17 and 56-68 is/are rejected.

8) D Claim(s) is/are objected to.

9) D Claim(s) are subject to restriction and/or election requirement.

Application Papers

10)D The specification is objected to by the Examiner.

1 1 )□ The drawing(s) filed on is/are: a)D accepted or b)D objected to by the Examiner.

Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1 .85(a).
Replacement drawing sheet(s) including the correction is required if the drawing(s) is objected to. See 37 CFR 1 .121 (d).

12) D The oath or declaration is objected to by the Examiner. Note the attached Office Action or form PTO-152.

Priority under 35 U.S.C. § 119

1 3) D Acknowledgment is made of a claim for foreign priority under 35 U.S.C. § 1 1 9(a)-(d) or (f).
a)DAII b)D Some * c)D None of:

1 .□ Certified copies of the priority documents have been received.

2. D Certified copies of the priority documents have been received in Application No. .

3. Q Copies of the certified copies of the priority documents have been received in this National Stage

application from the International Bureau (PCT Rule 17.2(a)).
* See the attached detailed Office action for a list of the certified copies not received.

Attachment(s)

1) ^ Notice of References Cited (PTO-892)

2) O Notice of Draftsperson's Patent Drawing Review (PTO-948)

3) ^ Information Disclosure Statement(s) (PTO/SB/08)

Paper No(s)/Mail Date .

4) CD Interview Summary (PTO-413)

Paper No(s)/Mail Date. .

5) O Notice of Informal Patent Application

6) □ Other: .

U.S. Patent and Trademark Office

PTOL-326 (Rev. 03-11)

Office Action Summary

Part of Paper No./Mail Date 20120314

Application/Control Number: 10/597,635 Page 2

Art Unit: 3771

DETAILED ACTION

Election/Restrictions

1 . Applicant's election without traverse of Group I, claims 1 -8, in the reply filed on
02/13/2012 is acknowledged.

This office action is responsive to the amendment filed on 02/13/2012. As
directed by the amendment: claims 1 , 9,1 6 and 46 have been amended, claim 1 0 has
been canceled and new claims 56-68 have been added. Accordingly, claims 18-45 are
withdrawn from further consideration pursuant to 37 CFR 1 .142(b) as being drawn to a
nonelected invention, there being no allowable generic or linking claim. It is also noted
that claims 46-55 of group VII, drawn to a method for gait rehabilitation by attaching a
multiple axis rotatable pedal to a patient's foot and automatically controlling the rotating
of the pedal, appear to lack of unity of invention. Lack of unity of invention may be
directly evident "a priori," that is, before considering the claims in relation to any prior
art, or may only become apparent "a posteriori," that is, after taking the prior art into
consideration. For example, independent claims to A +X, A + Y, X + Y can be said to
lack unity a priori as there is no subject matter common to all claims. In the case of
independent claims to A + X and A + Y, unity of invention is present a priori as A is
common to both claims. However, if it can be established that A is known, there is lack
of unity a posteriori, since A (be it a single feature or a group of features) is not a
technical feature that defines a contribution over the prior art. Accordingly, claims 46-55
are also withdrawn from further consideration pursuant to 37 CFR 1 .142(b) as being

Application/Control Number: 10/597,635
Art Unit: 3771

Page 3

drawn to a nonelected invention, there being no allowable generic or linking claim.
Thus, claims 1-9, 11-17 and 56-68 are presently under consideration in this application.

Claim Rejections - 35 USC § 102

2. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 1 02 that
form the basis for the rejections under this section made in this Office action:

A person shall be entitled to a patent unless -

(e) the invention was described in (1 ) an application for patent, published under section 1 22(b), by
another filed in the United States before the invention by the applicant for patent or (2) a patent
granted on an application for patent by another filed in the United States before the invention by the
applicant for patent, except that an international application filed under the treaty defined in section
351 (a) shall have the effects for purposes of this subsection of an application filed in the United States
only if the international application designated the United States and was published under Article 21 (2)
of such treaty in the English language.

3. Claims 1 -5, 7, 9, 1 1 -1 7, 56-57, 59-68 are rejected under 35 U.S.C. 1 02(e) as
being anticipated by Horst (US 6,966,882).

4. Re claims 1 -5, 7 and 9, Horst discloses a method for gait rehabilitation (see
abstract), comprising: identifying at least one deficient gait element; exercising said
deficient gait element individually using a rehabilitation apparatus 10 (fig. 1); and
exercising said deficient gait element in concert with at least one other gait element in
more than one plane on the same side of the body (col. 7, lines 18-26), using said
rehabilitation apparatus; wherein gait elements are chosen from a group consisting of
feet, legs, hips, torso, shoulders, head, hands and arms (col. 7, lines 18-26); exercising
a complex gait; wherein a complex gait is chosen from the group consisting of balance,
overcoming obstacles, moving backwards, movement on steps, turning, movement on
slopes and varying speed (col. 4, lines 41-44); wherein said gait rehabilitation is
performed sitting down (col. 4, line 4); wherein said gait rehabilitation is performed

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utilizing an object (col. 7, line 67 and col. 8, line 1 -2) designed to assist with movement;,
wherein the identifying at least one deficient gait element comprises: detecting the
positions of at least one gait element during movement (by means of joint angle sensor
414, col. 8, lines 54-62); recording the detected positions of the at least one gait
element, wherein position recordings are made (memory 420 in fig. 4, col. 1 1 , lines 5-
11); and, displaying (col. 8, lines 21 -23) said position recordings of the at least one gait
element.

5. Re claims 11-17, Horst discloses wherein at least one position sensor 41 4 (col.
8, lines 58-60) is used for said detecting; wherein at least one optical sensing device
(col. 8, lines 58-62) is used for said detecting; wherein at least one position sensor and
at least one optical sensing device is used for said detecting (col. 8, lines 58-62);
wherein said position recordings are of movements performed by a person undergoing
rehabilitation (rehabilitation mode 512, col. 10, lines 27-44); wherein said position
recordings are of movements performed by a person not undergoing rehabilitation
(monitor mode 510, col. 9, lines 57-63); wherein said exercising is analyzed in
comparison to said position recordings and wherein additional exercise is performed
based on said analysis (col. 10, lines 45-67).

6. Re claims 56-57, 59-68, Horst discloses wherein exercising the at least one
deficient gait element is based on said display of said recording (col. 8, lines 17-25);
further comprising measuring rehabilitation progress (data acquisition module, col. 1 1 ,
lines 38-43); wherein measuring uses at least one optical sensing device (col. 8, lines
60-62); further comprising providing feedback (fig. 4, col. 9, lines 25-30) during the

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Art Unit: 3771

exercising for enhancing gait rehabilitation performance; Horst teaches that
rehabilitation is performed in helping someone with muscle weakness in the everyday
tasks of standing, sitting and walking thus inherently teaches that the rehabilitation is
adapted for either a child or an adult; further comprising transmitting exercise data to a
remote location over a communications network (col. 8, lines 26-30); wherein exercising
is performed with the apparatus set in at least one of a plurality operational modes (fig.
5, col. 9, lines 41 -47); wherein the at least one set mode is motive (assist 508); wherein
the at least one set mode is passive (monitor 51 0). wherein the at least one set mode is
a combination of motive and passive (rehabilitate 512); wherein the at least one
deficient gait element is a complex gait element chosen from the group consisting of
balance, overcoming obstacles, climbing steps, movement on slopes and varying speed
(col. 4, lines 41-43); further comprising entertaining during exercising by incorporating
displaying exercise related data (col. 8, lines 21-23).

Claim Rejections - 35 USC § 103

7. The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all
obviousness rejections set forth in this Office action:

(a) A patent may not be obtained though the invention is not identically disclosed or described as set
forth in section 1 02 of this title, if the differences between the subject matter sought to be patented and
the prior art are such that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said subject matter pertains.
Patentability shall not be negatived by the manner in which the invention was made.

8. Claims 6 and 8 are rejected under 35 U.S.C. 1 03(a) as being unpatentable over
Horst.

9. Re claim 6, Horst teaches that rehabilitation is performed in helping someone
with muscle weakness in the everyday tasks of standing, sitting and walking but does

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Art Unit: 3771

not disclose that the rehabilitation is performed in a wheelchair. However, it would have
been obvious to one of ordinary skill in the art at the time of invention was made to
modify the Horst's reference, so that the rehabilitation of the task of sitting can be
performed in a wheelchair, for the purpose of providing suitable rehabilitation for
preventing injury and building muscle strength (see abstract).

1 0. Re claim 8, Horst teaches that passive assistance devices such as canes,
walkers, crutches provide assistance with mobility (col. 1 , lines 24-26), therefore, it
would have been obvious to one of ordinary skill in the art at the time of invention was
made to modify the Horst's reference, to include additional passive assistance devices
such as canes, walkers, crutches during the rehabilitation, for the purpose of providing
assistance with mobility (col. 1, lines 24-26).

1 1 . Claim 58 is rejected under 35 U.S.C. 103(a) as being unpatentable over Horst in
view of McBean et al. (US 2004/0106881). Horst does not disclose wherein measuring
uses at least one EMG sensor. However, McBean teaches a powered orthotic device
that can be controlled by a patient having spinal cord or other nerve damage by way of
the EMG signal measured by EMG sensor generated by the patient to move a joint
which the patient is otherwise unable to effectively move ([0012]). Therefore, it would
have been obvious to one of ordinary skill in the art at the time of invention was made to
modify the Horst's reference, to include EMG sensors, for the purpose of allowing the
patient to be quickly rehabilitated to use their limb or body part or can use the powered
orthotic device for daily activities where rehabilitation is not fully possible ([0012]).

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Conclusion

Any inquiry concerning this communication or earlier communications from the
examiner should be directed to Quang D. Thanh whose telephone number is (571)272-
4982. The examiner can normally be reached on Monday-Friday 9am-5pm.

If attempts to reach the examiner by telephone are unsuccessful, the examiner's
supervisor, Justine Yu can be reached on (571) 272-4835. The fax phone number for
the organization where this application or proceeding is assigned is 571 -273-8300.

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/Quang D. Thanh/

Primary Examiner, Art Unit 3771

Application/Control Number: 10/597,635 Page 8

Art Unit: 3771